Lang Wallace LLC Blog

Question: I am on an H1B visa and my wife is on H4. We came to the US in the year 2007. My I-129 and I-94 was extended in September 2009, however due to lack of information we did not apply for my wife’s I-94 extension. She went back to India on June 19, 2010, having overstayed her I-94 by 270 days. She finally got her H-4 visa stamp from the Delhi Consulate last week. We made a full disclosure about her overstay on the visa application [DS-160] to Delhi Consulate. My question is can CBP at the San Francisco Port-of-Entry refuse her entry due to her earlier overstay? If yes, can we do something about in advance? 

Answer:Excellent work securing the visa after the overstay! Unless CBP finds that your visa application was fraudulent, for example, that you did not disclose the overstay to the US Consulate, I see no reason for CBP to refuse entry. Your wife might expect to be pulled into secondary inspection however, and answer questions about her immigration history and visa application. I might help for her to carry copies of her visa application with supporting documentation to present, if necessary. There is not much else one can do in advance. In some cases, I might call CBP [contact information for CBP at the SF International Airport provided below] to ask them what their policy is. But again, in your case, unless there was fraud, or she is otherwise not eligible to enter as an H-4 [for example if you were no longer working in H-1B] CBP should not have a problem honoring the valid visa stamp.

Q: My employer wants to file a Labor Certification “PERM” based green card application for me. What are the regulations regarding advertising the position? 

A: A labor certification application is commonly referred to as “PERM” application and is submitted electronically to the U.S. Department of Labor after the U.S. employer [sponsor] performs a good faith test of the U.S. labor market. The PERM based green card process consists of three Stages:

Last year, I posted a video trailer for Janina’s American Wedding, a feature length documentary that gets to the heart of the broken, red tape ridden U.S. immigration system. After 18 years in America, Tony and Janina Wasilewski’s family is torn apart when Janina is deported back to Poland, taking their 6 year old son Brian with her. Set on the backdrop of the Chicago political scene, and featuring Illinois Congressman Luis Gutierrez at the heart of the immigration reform movement, this film follows the Wasilewski’s 3-year struggle to be reunited, as their Senator Barack Obama rises to the Presidency. With a fresh perspective on the immigration conversation, this film tells the untold human rights story of Post-9/11, that every undocumented immigrant in America faces today, with the power to open the conversation for change.

Below please find a link to a blog post from the USCIS Director Alejandro Mayorkas, and some relevant excerpts, which discuss this current administration’s efforts to attract and retain high-skill entrepreneurs.

http://blog.uscis.gov/2011/08/encouraging-entrepreneurs-and-high.html

As part of the Administration’s comprehensive effort to attract and retain high-skill entrepreneurs, USCIS announced today [8/2/2011] that it will:

• Clarify that immigrant entrepreneurs may obtain an employment-based second preference (EB-2) immigrant visa if they satisfy the existing requirements, and also may qualify for a National Interest Waiver under the EB-2 immigrant visa category if they can demonstrate that their business endeavors will be in the interest of the United States;

By JOSE ANTONIO VARGAS

Published: June 22, 2011 But I am still an undocumented immigrant. And that means living a different kind of reality. It means going about my day in fear of being found out. It means rarely trusting people, even those closest to me, with who I really am. It means keeping my family photos in a shoebox rather than displaying them on shelves in my home, so friends don’t ask about them. It means reluctantly, even painfully, doing things I know are wrong and unlawful. And it has meant relying on a sort of 21st-century underground railroad of supporters, people who took an interest in my future and took risks for me.

Jose Antonio Vargas (Jose@DefineAmerican.com) is a former reporter for The Washington Post and shared a Pulitzer Prize for coverage of the Virginia Tech shootings. He founded Define American, which seeks to change the conversation on immigration reform.

We are pleased to relate that US CBP [Customs and Border Protection] just approved a complex TN management consultant application for a client at the Peace Bridge port-of-entry!

This was a complicated case which came to us after CBP had previously refused the applicant entry as a business visitor [no legal representation] and then refused him again a week later as a TN mangement consultant [application prepared by another attorney].

We worked closely with corporate counsel and the applicant to understand and document the business need for the consulting services [which actually went back several years] and the applicant's unique qualifications for the job.

We presented a thorough application which addressed the prior refusals head-on, explained company operations and management structure, and carefully outlined the applicant's previous and proposed consulting services, breaking it down into phases.

We also called on our one of our local colleagues with over 25 years of border expertise to co-counsel and accompany the applicant to the port-of-entry. Truly a great result for us and the clients based on preparation and teamwork!

H-1B season opened several weeks ago on April 1st and we are off to a SLOW start. This comes as great news for employers and foreign nationals who would like to secure Hs this year [for a start date of October 1, 2011] but is also a clear indicator that U.S. employers are simply not hiring as much as some reports would like us to believe.

Below you will find an update on how many H-1Bs have been used this year and a look back at H-1B usage since 2007. Clearly, H-1B usage is WAY down from ‘07 and ’08, when the 65,000 H-1B cap was met in the very first days of April!

In comparison, since 2009, the H-1B Cap of 65,000 has not been met for at least nine months or more, and based on usage in the first two weeks of this year, we estimate this year's Cap will be open through to March 2012.

2011 H-1B Season [FY2012]

Cap Subject H-1Bs filed as of April 15: 7,100
Cap Hit: To Be Determined [estimated March 2012 based on first two weeks usage]

2010 H-1B Season [FY2011]

Cap Subject H-1Bs filed during first week of April: 13,500
Cap Hit: January 27, 2011 [ten months later]

2009 H-1B Season [FY2010]

Cap Subject H-1Bs filed during first week of April: 42,000
Cap Hit: December 21, 2009 [nine months later]

2008 H-1B Season [FY2009]

Cap Subject H-1Bs filed during first week of April: 140,000
Cap Hit: Immediately! First days of April 2008

2007 H-1B Season [FY2008]

Cap Subject H-1Bs filed during first week of April: 123,000
Cap Hit: Immediately! First days of April 2007

We are pleased to report an excellent decision from the USCIS [United States Citizenship and Immigration Service] Nebraska Service Center on a national interest waiver green card petition!

This was a challenging petition for a highly skilled, but young, social researcher, dedicated to improving the lives of America’s elderly population. USCIS acknowledged "that the proposed employment was in the national interest of the United States". BUT, USCIS also had serious doubts about whether our client's "past record of specific prior achievement justified projections of future benefit in the national interest”.

Question: I am a PhD candidate in petroleum engineering (finished my masters in 2009) who works at a supercomputing center. I have about 16 publications including one journal article and 1 book chapter. I am either 1st or 2nd author on these. I have been a reviewer on 6 conferences. My area of research is geologic CO2 sequestration, identifying the candidate reservoirs and studying the long term effects. To a lesser extent, the research is about shale gas (but in development phase) because that's where the CO2 is going to be stored. I managed to get 6 letters from collaborators, including 2 letters from NSF program directors. I also have a national award and about 40 citations of my work.

My question to you is this: What are my odds of getting an NIW EB2 approved given my qualifications?

Answer: Hello and thank you for contacting me. Based on the information you have provided, it sounds very promising. Have you filed yet?

I would say your qualifications are good, in that USCIS should be satisfied that your past record of accomplishment will lead to tangible benefits in the US. However, with respect to the field, and whether it should be considered an area of substantial intrinsic merit and national in scope, that is more difficult to say, mainly because you have not provided as much information.

Please find below the standards for the NIW, for your reference. I would also advise that for EB-1 outstanding researcher/extraordinary ability cases and EB-2 NIW cases, presentation techniques play a large part in the process. In other words, you want to make the adjudicators job easier by presenting your evidence in a way that allows them to determine if your case is a winner within the first 5 minutes of review.

We recently were successful in helping a Florida based platform development company secure the services of a software engineering technician with no post-secondary (high school) education, through the NAFTA TN Scientific Technician/Technologist temporary worker classification.

This is significant because while a scientific technician/technologist is theoretically not required to have post secondary education, in practice, it is not unusual for applicants without a two-year associates degree to be refused by the United States Customs and Border Protection (CBP).

Question: I filed an I-130 for my spouse when I had my green card. Two months ago we received a receipt notice with a file number. My spouse is in the US on an H1B and needs to adjust status. I just became a US citizen and want to apply I-485 for my spouse. How can I upgrade my I-130? What location should I file the I-485? For concurrent filing or location for just I-485 filing? Should I attach a copy of my citizenship certificate and a copy of I-130 and receipt notice with my I-485? Is that enough or I should call some number to update my I-130 status before I file I-485?